Saturday, November 21, 2009

Abortion and Health Care as Rights: Saturday Evening Review

The volatile link between abortion and heath care reform is being hotly debated.  The Stupak Amendment to the proposed Affordable Health Care for America Act, which passed in the House of Representatives,  provides that "no funds authorized or appropriated by this Act . . . may be used to pay for any abortion or to cover the costs of any health plan that includes coverage of abortion . . . ." with some exceptions.  As the focus on health care reform moves to the Senate, the Stupak Amendment continues to be a prominent issue, with NY's junior Senator vowing to defeat it. 

In her article Reproductive Rights and Health Care Rights, forthcoming in Columbia Journal of Gender and Law, available on ssrn here, Professor Jessie Hill of Case Western University, compellingly argues that the "right to abortion is also a health care right."

She contends that the right to abortion

is  a right to access  a particular medical procedure and a right to use that medical procedure to protect one’s health from significant harm, even if that procedure terminates a potential life. In fact . . . reproductive rights, including the right to contraception, have long been conceived in this way. The understanding of reproductive rights as health care rights, which has long been present in reproductive rights jurisprudence, has been downplayed by both courts and reproductive rights advocates in favor of a rhetoric centered on personal autonomy, equality, and dignity.

She explicitly - - - and seemingly enthusiastically - - - theorizes the right to health as only a "negative right to health—that is, a right to make medical treatment decisions without government interference,"  even as she insists that this negative right to health can serve as an important guarantor of reproductive rights, at least for those who can afford them.  

Hill_sm She notes that both "South Africa and Canada have recognized in some form a “right to health” in ways that bear partly, though not exclusively, on the abortion right."  Discussing  the well-known Minister of Health v. Treatment Action Campaign (TAC), 2002 (10) BCLR 1033 (CC) (S. Afr.), regarding the availability of an HIV antiretroviral drug,  she concludes that "South Africa has explicitly guaranteed a constitutional right to health that is understood, at least in part, as a positive entitlement to health care, including reproductive health services."   She contrasts Chaoulli v. Québec, [2005] 1 S.C.R. 791 (Can.), and concludes that " Canada, on the other hand, has not gone so far as to recognize a positive constitutional right to health care."  Yet both of her discussions are illuminating, and do, as she argues, indicate what might be trends in judicial recognition of health as a right.

In her concluding sections, she trenchantly notes several of the benefits of theorizing abortion as a medical right rather than a privacy or equality right.   Perhaps optimistically, she argues that

The right to health, as a right to medical decision– making autonomy, is an inclusive concept that touches on areas that are of concern or likely to one day be of concern to most people. As people age, they begin to worry more about their future interactions with the medical establishment in the context of end–of–life decision making, access to appropriate palliative care, and possibly to experimental drugs; in particular, they may reasonably fear that intrusive government regulators will attempt to control those interactions. There may be substantial political support for the idea that the government should not dictate health care decisions, whether they are decisions about experimental treatments for cancer or reproductive health care.

She also astutely contends that

emphasizing the medical side of abortion rights may engage non–obstetrician physicians more in reproductive rights issues.  After all, many of the legal restrictions that apply to abortion providers would probably strike other physicians as outrageous if applied to them.

As the health care debate's obsession with abortion continues, this is an article worth reading.


November 21, 2009 in Abortion, Comparative Constitutionalism, Current Affairs, Family, Fundamental Rights, Gender, Medical Decisions, Reproductive Rights, Theory | Permalink | Comments (1) | TrackBack (0)

Friday, November 20, 2009

Is the "Pay Czar" Constitutional?

That's the question that Michael McConnell (Stanford, and formerly on the 10th Circuit) and Martin Flaherty (Woodrow Wilson School, Princeton) are debating on the Federalist Society On-Line Debate Series

McConnell wrote an op-ed in the Wall Street Journal last month arguing that the Obama administration's Pay Czar violates the Appointments Clause:  Pay Czar Kenneth Feinberg is an "officer," but he was neither confirmed by the Senate nor authorized by Congress.  McConnell explains in the Federalist debate:

Mr. Feinberg is probably an "inferior" officer, defined as one subject to supervision and removal by a member of the cabinet.  Although he has substantial discretion and independence, Mr. Feinberg reports to the secretary of the Treasury, who can fire him at any time for any reason.  This means that Congress could, if it wished, vest the appointment of the pay czar in the secretary, without any need for Senate confirmation.

But Congress has not done so.

Why isn't Feinberg just an employee (and not an officer)?  McConnell's WSJ op-ed:

Mr. Feinberg signed last week's orders setting pay levels for executives at Bank of America, AIG, Chrysler Financial, Citigroup, GMAC, General Motors and Chrysler.  They have the force of law and are surely an exercise of "significant authority" pursuant to an Act of Congress.  [Quoting Buckley v. Valeo.]  He is not a mere "employee," acting at the direction of a superior.  That means his office is subject to the requirements of the Appointments Clause.

The Pay Czar is different than some (most?) other administration czars, which are presidential advisers and raise no Appointments Clause problems, in that the Pay Czar plainly exercises significant authority under the TARP and Treasury regulations.  (Treasury regs authorizing the Pay Czar to limit executive compensation of TARP recipients are here.) 

But the Pay Czar is also a temporary position, at least in theory, operating only until TARP recipients have repaid their obligations.  Under a 2007 Office of Legal Counsel memorandum, the Pay Czar therefore may well be a non-officer.  OLC Memo, at 32 (concluding that temporary and non-continuing positions are not "offices" for Appointments Clause purposes). 


November 20, 2009 in Appointment and Removal Powers, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, November 19, 2009

Seventh Circuit Rules on Gun Case

The Seventh Circuit, which spawned McDonald v. City of Chicago, the Second Amendment incorporation case now before the Supreme Court, ruled yesterday that the federal government failed to sufficiently justify its ban on firearms for domestic violence convicts under the Second Amendment.

The Seventh Circuit in U.S. v. Skoien established a framework and a test, where D.C. v. Heller was silent.  Thus the court adopted this two-step framework:

First, some gun laws will be valid because they regulate conduct that falls outside the terms of the right as publicly understood when the Bill of Rights was ratified.  If the government can establish this, then the analysis need go no further.  If, however, a law regulates conduct falling within the scope of the right, then the law will be valid (or not) depending on the government's ability to satisfy whatever level of means-end scrutiny is held to apply.

Skoien, at 10 (citing Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda; Lund, The Second Amendment, Heller, and Originalist Jurisprudence; Winkler, Heller's Catch-22; and Reynolds and Denning, Heller's Future in the Lower Courts.

As to the first part, the court ruled that Skoien's hunting shotgun was squarely within the Second Amendment's protection, relying on D.C. v. Heller's reference "to the founding-era importance of the right to bear arms 'for self-defense and hunting.'"  (Quoting Heller, with emphasis added.)

As to the second part, the court ruled that intermediate scrutiny was the best standard (because Heller specified none, but suggested that neither rational basis nor strict scrutiny was the right test) and that the government failed to meet this:  The government simply neglected to argue that its ban "reasonably fit" its objective to reduce domestic gun violence.  (Instead, the government relied only on the dicta in Heller saying that felon dispossession laws would withstand Second Amendment scrutiny.)  The court remanded with this instruction:  "If the government successfully discharges its burden [under intermediate scrutiny], the district court shall reinstate Skoien's conviction."

Skoien involves a federal gun ban.  It therefore says nothing about whether the Second Amendment applies against the states--the issue now before the Supreme Court.


November 19, 2009 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Same-sex marriage updates: New York and Texas

New York's highest court today (download here) affirmed the rejection of a taxpayer challenger to directives by executive and county officials that recognize out-of-state same-sex marriages for purposes of public employee health insurance coverage and other benefits. 
Map new york

The case may be most interesting to constitutional law professors for what it does not hold; the challengers abandoned almost all of their state constitutional law claims before the Court of Appeals.

In considering the one possible extant constitutional law claim, the Court of Appeals construed it as a statutory claim:

Plaintiffs' remaining cause of action, which alludes to the separation of powers doctrine, boils down to the claim that defendants acted "inconsistently with the Legislature's pronouncements on spousal benefits." Specifically, plaintiffs allege that defendants acted in violation of Civil Service Law §164.

The Court's opinion concludes,

We end, by repeating what we said in Hernandez v Robles, expressing our hope that the Legislature will address this controversy; that it "will listen and decide as wisely as it can; and that those unhappy with the result -- as many undoubtedly will be -- will respect it as people in a democratic state should respect choices democratically made."

UPDATE: NYLJ article here.

The issue of same-sex marriage is presently before the New York Legislature.

Meanwhile, in Texas,

{Texas update from Texas Lawyer here}

Texas map

Barbara Ann Radnofsky, a candidate for state Attorney General is reportedly arguing that a DOMA-like amendment to the Texas constitution actually bans all marriages.  The amendment, now in Article 1 §32, provides:

This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.

Radnofsky seems to be arguing that a plain meaning interpretation of the constitutional provision prohibits all marriages.


November 19, 2009 in Current Affairs, Interpretation, Recent Cases, Separation of Powers, Sexual Orientation, Sexuality, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Sheldon Whitehouse Lecture in NYC

"Living Up To Our Constitution" is the title of a lecture to be given by United States Senator (D-RI) on Friday, November 20 at 5:30 pm, sponsored by the Brennan Center at NYU.

As a member of the Senate Judiciary and Intelligence Committees, Whitehouse has prominently supported the confirmation of Sotomayor and the investigation of the role of the Bush Administration in torture and surveillance.

More information and rsvp details here.


November 19, 2009 in Conferences, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 18, 2009

Dred Scott & Harriet Scott Plaque next to Taney Statute

Justice Roger Taney, a Supreme Court Justice, lived in Frederick, Maryland and practiced law there.  Thus, it is not surprising that the town of Frederick would have a monument to Taney.  It is also not surprising that not everyone would feel Taney should be honored with a monument; Justice Taney is most most well-known for authoring the Dred Scott decision.


As reported yesterday, the town of Frederick has installed a plaque as a tribute to Dred and Harriet Scott.  As the reports note, this occurred after extensive discussions and planning (the plaque itself bears the year 2008).


November 18, 2009 in Cases and Case Materials, Current Affairs, Federalism, Fourteenth Amendment, Fundamental Rights, History, News, Privileges and Immunities, Race, Reconstruction Era Amendments, Thirteenth Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 17, 2009

Latina: the Magazine and the Justice

On newstands today is the new issue of Latina, the magazine, with a cover portrait of Justice Sonia Sotomayor. 


Portions of the accompanying article, written by Sandra Guzman, a former Editor-in-Chief of Latina, are available on the magazine's website here.  The piece is a profile rather than an interview, as Guzman makes clear in her journalistic style:

As the new personification of an intellectual rock star, Sotomayor has been inundated with interview requests—from Vogue to Newsweek, El País to Le Monde. But the new justice has yet to agree to a sit-down, aside from one she granted C-Span for a documentary on the Supreme Court. When I asked about a formal interview for this magazine, she told me, “I am not doing interviews and have said no to everyone. I do not want to be seen as having favorites.”

She did, however, agree to have her portrait taken for the cover and inside pages. And she went as far as granting me her blessing: “You will have to write based on our history together.”

And that’s exactly what I’ve done.

It may be a piece worth reading for ConLawProfs - - - certainly, some of our students will be reading it.


November 17, 2009 in Gender, History, News, Race | Permalink | Comments (0) | TrackBack (0)

Googling Constitutional Law

Google's newest enhancement has the potential to change the way we research constitutional law.

Here's an announcement from the "Official Google Blog"

Starting today, we're enabling people everywhere to find and read full text legal opinions from U.S. federal and state district, appellate and supreme courts using Google Scholar. You can find these opinions by searching for cases (like Planned Parenthood v. Casey), or by topics (like desegregation) or other queries that you are interested in. For example, go to Google Scholar, click on the "Legal opinions and journals" radio button, and try the query separate but equal. Your search results will include links to cases familiar to many of us in the U.S. such as Plessy v. Ferguson and Brown v. Board of Education, which explore the acceptability of "separate but equal" facilities for citizens at two different points in the history of the U.S. But your results will also include opinions from cases that you might be less familiar with, but which have played an important role.

The blog entry also has this populist proclamation:

As we worked to build this feature, we were struck by how readable and accessible these opinions are. Court opinions don't just describe a decision but also present the reasons that support the decision. In doing so, they explain the intricacies of law in the context of real-life situations. And they often do it in language that is surprisingly straightforward, even for those of us outside the legal profession. In many cases, judges have gone quite a bit out of their way to make complex legal issues easy to follow. For example, in Korematsu v. United States, the Supreme Court justices present a fascinating and easy-to-follow debate on the legality of internment of natural born citizens based on their ancestry.


November 17, 2009 in Cases and Case Materials, Scholarship, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)

Monday, November 16, 2009

Right to Bear Arms is a Privilege or Immunity, McDonald Argues

Petitioners in McDonald v. City of Chicago, the Second Amendment case now before the Supreme Court, filed their merits brief today and argued full force that the individual right to bear arms is protected against state interference by the Fourteenth Amendment Privileges or Immunities Clause.

The petitioners' aggressive argument on the Privileges or Immunities Clause--and the after-thought treatment of the Due Process Clause--opens the door for a reevaluation of how the Court treats claims that fundamental rights, including those in the Bill of Rights, apply against the states.

Petitioners' Privileges or Immunities claim was rejected by the Seventh Circuit.  That court ruled that The Slaughter-House Cases (holding that the P or I Clause does not incorporate the Bill of Rights, en bloc, to the states), and U.S. v. Cruikshank, Presser v. Illinois, and Miller v. Texas (all rejecting arguments that the P or I Clause incorporates the Second Amendment to the states) were still good law, even if they are universally criticized and even defunct.  The Seventh Circuit also rejected the petitioners' Due Process argument.  (The Second Circuit, in a panel including then-Judge Sotomayor, similarly rejected a claim that the Second Amendment applied against the states, but the Ninth Circuit ruled that it did.  The full Ninth Circuit voted to rehear the case en banc.)

Petitioners argue, as they must, that The Slaughter-House Cases, U.S. v. Cruikshank, and Presser v. Illinois should be overruled.

Here's a taste:

And yet this Court's various approaches to [applying fundamental rights, including those in the Bill of Rights, to the states under] the Fourteenth Amendment fall short of upholding this provision's essential promise.  State violations of rights understood and intended by the ratifying public to receive significant Fourteenth Amendment protection are not meaningfully secured by the federal courts.  Moreover, the failure to honor the Fourteenth Amendment's original public meaning foments confusion and controversy as courts pursue other approaches to protecting core individual rights.

This case presents a rare opportunity to correct a serious error, honor the Fourteenth Amendment's true meaning, and bring a needed measure of clarity to this Court's civil-rights jurisprudence.

The Fourteenth Amendment's Privileges or Immunities Clause forbids the States from abridging civil rights, including those codified in the Bill of Rights. . . .

SlaughterHouse's illegitimacy has long been all-but-universally understood.  It deserves to be acknowledged by this Court.  Because SlaughterHouse rests on language not actually in the Constitution, contradicts the Fourteenth Amendment's original textual meaning, defies the Framers' intent, and supplies a nonsensical definition for Section One's key protection of civil rights, overruling this error and its progeny remains imperative.

Others, most notably the Constitutional Accountability Center, have made similar arguments.  I've posted on them here, here, here, and here.  Ruthann just posted yesterday on teaching P or I here.


November 16, 2009 in Due Process (Substantive), Federalism, Fourteenth Amendment, News, Privileges and Immunities, Recent Cases, Reconstruction Era Amendments, Second Amendment | Permalink | Comments (0) | TrackBack (0)